Citation Nr: 1329237 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 12-24 132A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 20 percent for the residuals of trenchfoot with trichophytosis and onychomycosis (including frostbite) of the right foot. 2. Entitlement to a rating in excess of 20 percent for the residuals of trenchfoot with trichophytosis and onychomycosis (including frostbite) of the left foot. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from April 1951 to February 1952 and from August 1952 to April 1955. This matter came to the Board of Veterans' Appeals (Board) on appeal from an June 2010 rating decision by the RO. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Effective March 31, 2012, the Veteran's residuals of trenchfoot with trichophytosis and onychomycosis (including frostbite) of the right foot consisted of include complaints of tingling and numbness, nail abnormalities, and osteoarthritis. 2. Effective March 31, 2012, the Veteran's residuals of trenchfoot with trichophytosis and onychomycosis (including frostbite) of the left foot consisted of complaints of tingling and numbness, nail abnormalities, and osteoarthritis. CONCLUSIONS OF LAW 1. Effective March 31, 2012, the criteria were met for a 30 percent rating for the residuals of trenchfoot with trichophytosis and onychomycosis (including frostbite) of the right foot. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.104 (2012). 2. Effective March 31, 2012, the criteria were met for a 30 percent rating for the residuals of trenchfoot with trichophytosis and onychomycosis (including frostbite) of the left foot. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.104 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issues of entitlement to service connection for increased ratings for the residuals of trenchfoot with trichophytosis and onychomycosis (including frostbite) of each foot. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In June 2009, VA received the Veteran's claims, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claims, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain. VA informed the Veteran that in order to establish an increased rating for his service-connected disabilities, the evidence had to show that the disabilities had worsened and the manner in which such worsening had affected his employment and daily life. 38 U.S.C.A. § 5103(a). Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of the Veteran's records reflecting his VA treatment from July 2008 to December 2012 and the reports of VA examinations, performed in August 2009 and March 2012. The VA examination reports show, VA examined the Veteran to determine the extent of impairment due to his service- connected residuals of his right and left trenchfoot with trichophytosis and onychomycosis (including frostbite). The VA examination reports show that the examiners reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his medical conditions, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examinations are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2009); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In January 2012, the Veteran had a hearing at the RO before a VA Decision Review Officer. It was noted that a VA examination had been scheduled to evaluate the level of impairment caused by his service-connected residuals of trenchfoot with trichophytosis and onychomycosis. He declined to discuss the increased rating issue during his hearing. To date, the Veteran has not requested a hearing before a member of the Board. Therefore, the Board will proceed as if the Veteran does not desire a hearing on his increased rating claims. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claims; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Claim Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of VA's Schedule For Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. Generally, the relevant temporal focus for adjudicating the level of disability of an increased rating claim is from the time period one year before the claim was filed (in this case, September 2003) until VA makes a final decision on the claim. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2012). See Hart, supra. The residuals of a cold injury are rated in accordance with 38 C.F.R. § 4.104, Diagnostic Code 7122. A 20 percent rating is warranted when the residuals of a cold injury consist of arthralgia or other pain, numbness, or cold sensitivity plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). A 30 percent rating is warranted when the residuals of a cold injury consist of arthralgia or other pain, numbness, or cold sensitivity plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). 38 C.F.R. § 4.104, Diagnostic Code 7122. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran contends that the 20 percent ratings for his service-connected residuals of trenchfoot with trichophytosis and onychomycosis (including frostbite) do not adequately reflect the level of impairment caused by those disorders. Therefore, he maintains that increased ratings are warranted. In part, the Board agrees. Accordingly, the appeal will be granted to the extent indicated. In June 2010, the RO denied the Veteran's claim of entitlement to ratings in excess of 10 percent for the residuals of trenchfoot with trichophytosis and onychomycosis (to include frostbite) in either foot. The Veteran disagreed with that decision, and this appeal ensued. In August 2012, following additional development of the record, the RO raised the Veteran's rating from 10 to 20 percent for the residuals of trenchfoot with trichophytosis and onychomycosis (to include frostbite) of each foot. The RO noted that the Veteran complained of numbness, burning, and arthralgia in each foot. In addition, X-rays, taken during the March 31, 2012 VA examination confirmed, for the first time, the presence of arthritis. Therefore, the RO found that effective March 31, 2012, the manifestations of the Veteran's foot disorder met or more nearly approximated the criteria for a 20 percent rating under 38 C.F.R. § 4.104, Diagnostic Code 7122. In reviewing the claims file, however, the Board notes that at the time of the March 31, 2012 VA examination, service connection was also in effect for onychomycosis of each foot. Onychomycosis is a disorder of the nails and, as such, constitutes a nail abnormality. STEADMAN'S MEDICAL DICTIONARY 1367 (28th ed. 2006). When considered in conjunction with the Veteran's complaints of tingling and numbness and osteoarthritis, the Board finds that effective March 31, 2012, the manifestations of the Veteran's residuals of a cold injury of the feet met or more nearly approximated the schedular criteria for a 30 percent rating under 38 C.F.R. § 4.104, Diagnostic Code 7122. Accordingly, an increased rating was warranted for each foot, effective March 31, 2012, and, to that extent, the appeal is granted. In arriving at this decision, the Board has considered the possibility of referring this case to the Director of the VA Compensation and Pension Service for possible approval of an extraschedular rating for the Veteran's service-connected residuals of trenchfoot with trichophytosis and onychomycosis (to include frostbite) of each foot. 38 C.F.R. § 3.321(b)(1) (2012). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun v. Peake, 22 Vet. App. 111, 114 (2008). However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). There is a three-step inquiry for determining whether a claimant is entitled to an extraschedular rating. Thun, 22 Vet. App. at 115. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service- connected disability are inadequate. In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular evaluation is found to be inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors, such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a claimant's disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. In this case, neither the Veteran nor his representative have expressly raised the matter of entitlement to an extraschedular rating. The Veteran's contentions have been limited to those discussed above, i.e., that his disability is more severe than is reflected by the currently assigned schedular rating. See Brannon v. West, 12 Vet. App. 32 (1998) (while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant). The criteria for rating a residuals of trenchfoot with trichophytosis and onychomycosis (to include frostbite) of each foot, specifically, contemplate the symptoms of those disorders: arthralgia or other pain, numbness, or cold sensitivity plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis. 38 C.F.R. § 4.104, Diagnostic Code 7122. In short, the Veteran does not have symptoms associated with his residuals of frozen feet that have been left uncompensated or unaccounted for by the assignment of a schedular rating. Thun, 22 Vet. App. at 115. Therefore, the preponderance of the evidence is against a finding that the Veteran's foot disorders present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Accordingly, further action is not warranted under 38 C.F.R. § 3.321 (b)(1). Because the inquiry in making this determination is sequential, and the Veteran does not meet the first element in the sequence, the Board does not need to reach any question as to whether the Veteran's residuals of frozen feet markedly interfere with his employment. ORDER Prior to March 31, 2012, entitlement to a rating in excess of 20 percent is denied for the residuals of trenchfoot with trichophytosis and onychomycosis (including frostbite) of the right foot. Prior to March 31, 2012, entitlement to a rating in excess of 20 percent is denied for the residuals of trenchfoot with trichophytosis and onychomycosis (including frostbite) of the left foot. Effective March 31, 2012, entitlement to a 30 percent rating is granted for the residuals of trenchfoot with trichophytosis and onychomycosis (including frostbite) of the right foot. Effective March 31, 2012, entitlement to a 30 percent rating is granted for the residuals of trenchfoot with trichophytosis and onychomycosis (including frostbite) of the left foot. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs